Page 219 - ELT_15th May 2020_VOL 372_Part 4th

2020 ] SANTOSH KUMAR PODDAR v. COMMISSIONER OF CUSTOMS (PREV.), KOLKATA 609

tor of the Company without implicating the company itself. Learned AR appear-
ing on behalf of the department reiterated the findings of the Ld. Adjudicating
Officer.
7. Heard both sides and perused the appeal records.
8. We find that the adjudicating authority has taken the view that the
claim of lawful acquisition of the subject gold by M/s. Anjani Gold Private Lim-
ited, dealing with in Gold Bullion for years and handing over gold of such high
value to a person without any written agreement is surprising and unacceptable.
Non-mentioning of marks brand as found on two gold biscuits in the Tax Invoice
and holding the subject gold for about three months in a stock was observed as
deceitful attempt to salvage the seized gold. Learned Commissioner in passing
the impugned order did not find that the burden of proof as envisaged under
Section 123 of the Customs Act, 1962 had been discharged by the appellant. We
also find it appropriate to observe the judicial principle laid down in the case of
Rasilaben H. Rathod reported in 2008 (226) E.L.T. 641 (Tri. - Ahmd.) wherein it has
been held that “Gold - Restriction therefor - Except normal records to show sale and
purchase, no elaborate records required to be maintained after repeal of Gold (Control)
Act, 1968 - No rule or regulation mandating maintenance of records for purchase of gold
- Law not requires mentioning of brand or mark of foreign marked gold on sale docu-
ments”.
9. We find that the appellant is the Director of a Company admittedly
dealing with gold bullion. It is also on record that apprehension of Shri Amol
Deshmukh with the subject gold was not brought to the notice of the claimant
before he was produced to the Judicial Magistrate under arrest. On perusal of the
statements recorded by the Revenue, it reveals that at no point of time ownership
of the gold was agitated. The seized gold was duly recorded in the Books of Ac-
count of M/s. Anjani Gold Private Limited which was admittedly computerized.
The purchase invoice issued by State Bank of India showing that 198015.52
grams in Customs auction is also not disputed by the Revenue. Thus, we are of
the view that the obligation under Section 123 of the Customs Act, 1962 has been
discharged by the claimant of the gold. We also find that the Revenue has not
been able to adduce any evidence to prove that the subject gold has been illegally
imported by the appellants and the order of confiscation under Section 111(b)
and under Section 111(d) of Customs Act is not sustainable as imposition of pen-
alty under Section 112 is consequential to confiscation of goods under the Cus-
toms Act.
10. Moreover, imposition of penalty on the Director of a Company
without making the Company a party to the proceeding is not justifiable and ac-
cordingly set aside. More so, when the confiscation of the seized goods is set
aside, penalization thereof is not maintainable upon the appellants herein.
11. In view of the above discussions, the impugned order is set aside
and the appeals are allowed with consequential relief to the appellants. Appeal
No. C/76712/2016 is dismissed as infructuous.
(Pronounced in the open Court on 18-12-2019)

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EXCISE LAW TIMES  15th May 2020  219